Public Bill Committee

[Mr Gary Streeter in the Chair]

Clause 71

Question (this day) again proposed, That the clause, as amended, stand part of the Bill.

Lynne Featherstone: The hon. Member for Kingston upon Hull North has asked about the fees for the various requests and systems. New section 30A of the Safeguarding Vulnerable Groups Act 2006 addresses information on requests—we worked through the fees in our previous sitting, but the fees are not finite at this point—and new section 30B addresses the register.
The hon. Lady asked whether there are two systems. Yes, there are two systems, but they are completely different. The first system provides updates on the barred register; the other system, which is completely separate, is the CRB updating system under clause 80. I want to make it clear that the two systems are separate.

Diana Johnson: Would the two systems attract two lots of fees? Would there be a fee to carry out a CRB check and a fee to be told about barring?

Lynne Featherstone: Yes. They are separate systems. An employer who wants to register for updates on barring will pay one fee, and the fee for the updating service on the CRB system will be separate.
We have had many discussions with employers, the Scouts and many of the sporting bodies on whether an active arrangement, a reactive arrangement or a proactive arrangement is better. They each have a different way of managing their employees or volunteers. Some do it centrally, some do it at a local level, but they all agree that either a proactive arrangement or a reactive arrangement would meet their needs.
New section 30B enables persons mentioned in schedule 7 to the 2006 Act, which includes, for example, regulated activity providers and certain regulatory bodies, to register an interest in individuals engaged in regulated activity. It requires the Secretary of State to notify such persons should an individual become barred from regulated activity.
Registration for such information will require the consent of the individual engaged in regulated activity and, for that purpose, any consent given by an individual for a barred list check under new section 30A suffices for consent for registration under new section 30B. Again, a fee will be chargeable for that service. That arrangement will result in a proactive notification system whereby the interested person is automatically told when a particular person is barred.
Subsection (2) of the clause amends section 33(3) of the 2006 Act to provide for registration under new section 30B to be periodically renewed and for registration to cease if it is not renewed.

Question put and agreed to.

Clause 71, as amended, accordingly ordered to stand part of the Bill.

Clause 72

Question proposed, That the clause stand part of the Bill.

Diana Johnson: The clause inserts new section 34ZA into the 2006 Act. New clause 34ZA demands that any regulated activity provider must check whether someone is barred under clause 70 before allowing them to participate in a regulated activity. That also applies to agencies that supply staff.
We have talked a little about the obligation that will be on employers to carry out a barred status check at the outset of employment, but it applies only to regulated activity. My understanding is that for regulated activity an enhanced CRB check will reveal an individual’s barred status. Perhaps the Minister could confirm that.
I want the Minister to address a number of issues. What measures will the Home Office undertake to ensure that activity providers understand the obligation placed on them by the clause? We have talked a little about the one-off nature of the check at the outset of employment, but I am concerned about individual employees who become barred part way through their employment with employer A, as a supervisor in a Sunday school setting, for example. In such cases, I am concerned about consent. Will the Minister explain again why she feels that the consent of the individual is necessary for an employer to be informed of a barring decision? What is the explanation and evidence for that? What if that information were automatically given to the employer if a person became barred? I am not sure why she feels that we need the extra protection of obtaining the individual’s consent. How will consent be established? Will a letter be sent to the employer, or will it be on one of the forms involved when a CRB check is made in the first place? I want to be clear about how consent will be obtained.
What about a situation in which someone undertakes a standard enhanced CRB check? Employers and organisations might think that that is sufficient to fulfil their duties under the clause. Why not reveal barred status automatically? That would ensure that employers and organisations were fully aware of an individual’s current status. I am concerned that employers might be confused—not so much big employers, which will have specialists in their HR departments, but small local groups or organisations that might only do such applications infrequently. How will they be kept fully up to date on what exactly to look for and what steps to take? I am a bit concerned.
Will the provider of a regulated activity have to pay the two sets of subscription fees? Again, I want to be clear. I know that there are two fees, which we discussed in the previous clause, involved in updating, but will the Minister set it out clearly? There is the initial application. Is there an additional fee to check barred status at the beginning, or is that part of the general CRB check that will be carried out for regulated activity? Will there effectively be three fees?
Will it say on the form that an employer must complete which sector the barring relates to, such as children or vulnerable adults, or is that not on the form at all? Will the Independent Safeguarding Authority just give a general disclosure?
Where is the requirement to keep up to date? I understand that the Government will make things clear at the outset of employment, but where is the requirement for an employer, throughout the course of employment, to maintain records, check and ensure compliance? That completes what I wish to say.

Lynne Featherstone: The hon. Lady is absolutely right. It is important that we make it clear what the duty is under new section 34ZA, and we will do so in guidance. Consent is required because it is sensitive personal information about the individual. The employer will make a declaration saying that they have the individual’s consent. It is up to the employer exactly how that is recorded.
The hon. Lady asked about the one-off nature. As I said previously, it is an offence to employ someone who is barred. If an employer provides regulated activity, they will not want to commit the offence of employing someone who has been barred. The onus is on the employer, but I am sure that the employer will check, because the circumstances around those who provide regulated activities are of the genre that requires the greatest care. It is not like any job; those who run schools or care homes have particular provisions.

Diana Johnson: I am grateful for that clarification. I did not mean to imply that employers would deliberately set out not to check. My point was that it might well be confusing for an employer: not necessarily a big one, but one of the smaller organisations, charities or voluntary sector groups that faces such checks infrequently. They might get confused and think that an enhanced CRB check is sufficient, without looking at the barring information.

Lynne Featherstone: It is our job to make it clear in the guidance that an ordinary enhanced CRB check is not the be-all and end-all where regulated activity is concerned. The form will state what the sector of regulated activity is—children, vulnerable adults or both.
The regulated activity provider can choose to be registered under section 30B if it wants an update on barred status. The regulated activity provider can also be informed of any updates, including barred status, under the new updating system detailed in clause 80. There are three different ways in which that can happen, and the provider can choose to be part of them all but does not have to be.
The form requests the employer to identify whether the role involves working or volunteering with children or vulnerable adults. However, if the individual will be working across the sectors, the employer can indicate that and only one fee will be paid. Under the new arrangements, the fee will be £44—not the £64 that it would have been under the scheme proposed by the previous Government.
The hon. Lady asked about consent. That relates to clause 80, so this is slightly different. There is no requirement under the 2006 Act, currently, for the employer to continue to check whether current employees are barred. There are options in the Bill that enable the employer to be told if an employee becomes barred. Sector-specific regulations, such as teacher staffing regulations, require periodic checks, which we believe are best left to the sector-specific regulations and guidance.
Clause 72 places the duty on employers and other regulated activity providers to check whether a person is barred before allowing them to engage in regulated activity. That follows on from the abolition of the requirements for employees and volunteers to register and be subject to monitoring, as under the previously planned vetting and barring scheme. It also replaces the provisions that would have required employers to check that an individual was subject to monitoring. So now employers or organisations will have to make sure; it is a duty—and it is an offence to knowingly employ. It will continue to be a criminal offence to allow a person to engage in regulated activities, knowing or having reason to believe that they are barred from such activities. We want to ensure that the public continue to be protected under the new arrangements, and the duty ensures that people responsible for placing individuals in positions of trust with vulnerable groups are duty-bound to check the suitability of the people they intend to employ.
It is important to get on the record—the hon. Lady mentioned this—that the provision places the same duty on personnel suppliers, such as employment agencies and umbrella groups in the voluntary sector, who provide people who they know will be, or are likely to be, engaged in regulated activity. Those personnel suppliers and agencies will be responsible themselves for ascertaining whether a person is barred, before allowing them to work in regulated activity.
I want to make the situation perfectly clear to the hon. Lady, by reiterating that we are ensuring that the duties are not too burdensome by providing three equally valid provisions and means of checking. First, information can be obtained under the new arrangements under clause 71 which, with the individual’s consent, allow information on barred status to be provided by the Secretary of State. Secondly, a new enhanced criminal record certificate, with the barred information on it, may be obtained from the Criminal Records Bureau within the prescribed time scale in respect of regulated activity. Thirdly, an existing enhanced criminal record certificate presented by an individual may be checked regarding what update information has been received in relation to that certificate within the prescribed time scale, as provided for under clause 80 for continuously updated CRB checks.
Finally, the clause enables the Secretary of State to disapply or exempt persons of a prescribed description from the duty to carry out checks for barred status. When proper checks are already being carried out for other purposes—for example, by the police, whose checks are thorough in their own right—the Secretary of State could reduce the bureaucratic burden by exempting such persons and taking those checks into account.

Diana Johnson: I am sure that the Minister will remember that earlier in our debates we talked about the submission from the Association of Chief Police Officers, which was concerned that the police had not been removed from the requirements of regulated activities. May I take it from what the Minister has just said that it will be possible under the clause for the police to be taken out of the regulated activity criteria?

Lynne Featherstone: Yes. I am sorry if I missed out that point earlier. We intend to exempt the police from the requirement to make checks, given the very thorough vetting procedures that they operate during police recruitment. On that basis, I ask the Committee to agree to the clause.

Question put and agreed to.

Clause 72 accordingly ordered to stand part of the Bill.

Clause 73

Question proposed, That the clause stand part of the Bill.

Diana Johnson: As I understand it, the intention of the clause is to prevent duplication. If the ISA knows that an individual is on a barred list in either Scotland or Northern Ireland, it must take that individual off the barred list for England and Wales. I want to ask the Minister what is wrong with having individuals on two barred lists. I am sorry that the hon. Member for Strangford is not here, because he might have something to say about Northern Ireland.
I do not understand why the Government feel that the clause is necessary. How would the ISA know that an individual is on a barred list in Scotland or Northern Ireland? I want to understand what the existing relationship is. How much will it cost for the ISA to find that information out, so that it can make changes? Does the clause not just add to the bureaucracy? I do not understand why we are keeping three separate lists rather than have one that each nation could apply to look at.
If a person applies to take part in a regulated activity in England or Wales but is on a barred list in Scotland or Northern Ireland, how will that information be sent to those in England and Wales who want to consider that barring decision? I am a bit confused about how the system will work.

Lynne Featherstone: I thank the hon. Lady. The ISA takes barring decisions for England, Wales and Northern Ireland on the basis of the criteria set out in the Safeguarding Vulnerable Groups Act 2006. A slightly different scheme operates in Scotland, where decisions are taken separately. For Scotland, we are doing what the Scottish Executive wanted us to do, because it is a matter for them and we have consulted them about it. The schemes for England, Wales and Northern Ireland will be aligned.
It would be wrong to have individuals on two or all of the barred lists, because there would be two separate sets of appeals and two different reviews. The ISA holds the barred list for Northern Ireland as well as the one for England and Wales, so there will be no cost in relation to those three countries. The ISA will have access to the Scottish list, which it will check. Individuals will be barred from regulated activities if they are on the list for England and Wales or Northern Ireland or the one for Scotland. Wherever their name appears, they are barred—end of. That is the same as the present system, which will not be changed. If that explanation is helpful, I ask the Committee to agree to the clause.

Question put and agreed to.

Clause 73accordingly ordered to stand part of the Bill.

Clause 74

Amendments made: 145, in clause74, page59, line16, leave out from ‘appropriate’ to end of line 17.
Amendment 146, in clause74,page60,line15,leave out ‘the’ and insert ‘a’.—(Lynne Featherstone.)

Question proposed, That the clause, as amended, stand part of the Bill.

Diana Johnson: I seek guidance from the Minister about the provisions on teachers who are no longer able to teach in the Education Bill that is currently passing through Parliament. I have previously raised that informally with the Minister, because I was concerned about professional bodies that have responsibility for barring individuals within their own professions. As I understood it, the Education Bill proposed that the list of teachers who were no longer able to teach would be made available to the public, and I note that the provision in clause 74 does not mention disclosure to the general public. It would be helpful to understand how the bodies that have the power professionally to bar fit in with that, in terms of names and details being given out. I know that the Minister is concerned about people’s privacy and confidential information. How does that fit with barring information, which is not publicly available and to which access will be restricted?
I have already outlined the concerns of the General Social Care Council about the exchange of information and how its role as a regulator—a body that can deal with professionals who are not behaving in the correct professional manner—links with barring. Perhaps the Minister could say something about that.

Lynne Featherstone: I thought that we had a fairly extensive discussion about that earlier. I will address the hon. Lady’s concerns about the relation to the teaching prohibition list in some detail if that would be helpful. She has asked why there was a difference between the proposal in the Education Bill to publish a list of people who were prohibited from teaching and the unpublished ISA barred list. Unlike the ISA barred list, the list of those prohibited from teaching will relate to serious professional misconduct, not to safeguarding. Serious professional misconduct might be helping a child to cheat in an exam, or something that is absolutely nothing to do with harming a child.

Diana Johnson: Is it correct to say that serious professional misconduct might include areas that would also be a safeguarding concern, such as inappropriate relationships with pupils or students?

Lynne Featherstone: I would assume that the teaching professional list, as we have said, would make that information available to the ISA. If the level of harm and information were as the hon. Lady describes, I would hope that both bodies would consider between them where, what and which list such an individual was barred from. I cannot imagine under those circumstances that that information would not be provided to the ISA and put on the ISA barring list.

Diana Johnson: I am sure that that is right, but that was not my point. The Minister has said that the names of people who were prohibited from teaching as a result of professional misconduct would be available to the public, but those individuals would equally be on the ISA barred list, as I understand it, so their names would be publicly available for the professional misconduct but not for the barring. I think that that was my point.

Lynne Featherstone: That is correct. The hon. Lady is absolutely right. The Education Bill proposes that the Secretary of State may, in cases of serious misconduct, make an order to prohibit a person from teaching, and must keep a list of prohibited teachers. The Bill states:
“The list must be available for inspection by members of the public.”
The Government’s information note to the Education Bill Committee states that
“basic information about the person and the prohibition order will be available publicly.”
They are separate things. A member of the public can access the list of prohibited teachers, but they cannot access the ISA barred list; that is something completely different.
The note to the Education Bill Committee also stated that it provides a statement of policy intentions for the new arrangements to regulate the teaching profession, which will be a basis for draft regulations on which there will be a full public consultation. The plan is for regulations to come into effect when the Secretary of State’s powers for regulating the teaching profession commence, which is planned for April 2012. The information that is published on the list of prohibited teachers will be very limited, and in common with the policy of enhanced disclosures for non-regulated activity, the prohibition list will not state whether the individual has been barred from regulated activity. Instead, very basic details of the type of behaviour that led to the prohibition decision will be included. For example, the list might indicate that a teacher had been convicted of a violent assault, which goes back to the hon. Lady’s first question, but it would not state that it had resulted in a safeguarding bar. I hope that those comments have been helpful.

Diana Johnson: Is the Minister worried that the measure might lead to information about barring being made available to the public? The intention of the clauses that we have been discussing over the past few days has been to restrict barring information right down to only the regulated activity providers, but it seems that anyone will be able to go and look at a list. Such a list might contain information on violent assaults or inappropriate relationships with pupils. Would that not mean that general barring information would now be available?

Lynne Featherstone: Violent assault would be a criminal conviction, I imagine, so that information would be available any which way. That is a matter for those people who create the teaching list to decide on. The General Teaching Council prohibition decisions have been made public since the council started in the late 1990s, and list 99 was not published during all that period. The Opposition had an opportunity to unify those systems when they were in government; they chose not to do so, so I do not understand why they now want to take issue with the system, which has not changed.

Diana Johnson: To respond to that, we have spent a great deal of time debating restricting barring information and I understand the rationale that the Government are presenting for doing so. I am pointing out, however, that in other legislation that the Government are taking through the House at present, there is a provision under which information that the Government do not want to make available will be available to the public. That is the inconsistency. I am unsure whether the Government fully understand the departmental problems that are arising between the Department for Education and the Home Office.

Lynne Featherstone: We do understand, but the professional teaching barred list operates under a completely different system. The sort of people who look at the list for information to see whether they should employ a teacher will have a separate duty to find out whether that person is barred. Professional misconduct based on an inappropriate relationship with a pupil that did not lead to a conviction would lead to the ISA deciding whether to bar the person. It would not, however, by definition, always lead to a bar. In the Education Bill, the provision concerns teaching only, not regulated activity—some teaching is not regulated activity.

Jenny Chapman: I am interested to know whether the Minister has spoken to Education Ministers specifically on that matter. I argue that even if someone were barred from teaching because of something that might not appear to be about safeguarding—assisting someone with an exam, perhaps, as she suggested—it would be of relevance to the ISA. Has she confirmed that her colleagues in the Department for Education will ensure that there is a proper flow of information between the teaching barred list and the ISA?

Lynne Featherstone: The Bill is presented and supported by the Secretary of State.

James Brokenshire: And it is on the Bill.

Lynne Featherstone: And it is on the Bill. I am sure that the hon. Lady understands that the original review of the vetting and barring system was tripartite. The Home Office, the Department for Education and the Department of Health reviewed the entire system and talked with all those involved—there was no separation of one part of the Government and another.

Jenny Chapman: I want to know specifically about teachers. Practically, in the real world, how will the Minister and her colleagues ensure that the information on the teachers’ list is fed into the ISA?

Lynne Featherstone: That is a completely separate system.

Jenny Chapman: That is my point.

Lynne Featherstone: Those systems will work together, as I explained when I responded to the hon. Member for Kingston upon Hull North. When a professional organisation considers that it is dealing with something worth mitigating, it will decide. It has the first call on the situation and on the right action to take. It will then transfer, consult with and give the information to the ISA, if there is any concern about there needing to be a bar. The ISA and all the relevant regulators will be able to share information where appropriate, and I hope they will. I do not view them as organisations that have no contact or care about what the others are doing. They are a uniform group, who care about education for children. Some of the information is appropriate to the teachers’ prohibited list; other information is to do with barring, which is held by the ISA and is not published.

Diana Johnson: Would professional bodies have to pay a fee to access information on barring? It is worrying that under the clause there is a provision whereby a fee could be levied on professional bodies.

Lynne Featherstone: No.

Question put and agreed to.

Clause 74, as amended, accordingly ordered to stand part of the Bill.

Clause 75

Amendment made: 147, in clause75, page62, line34, before ‘of’ insert ‘or’.—(Lynne Featherstone.)

Question proposed, That the clause, as amended, stand part of the Bill.

Diana Johnson: I just want to ask the Minister a few questions about the clause, which makes amendments to the provision of information to supervisory authorities. The example quoted in the explanatory notes is Her Majesty’s Chief Inspector of Schools in England, which will be one of the organisations to which information could be provided. Subsection (1) replaces the duty on a supervisory authority to provide information that may be relevant to a barring decision with the discretion to do so. Why has the hon. Lady made such a provision a discretion, not a duty? Subsection (3) ensures that any obligation to provide children’s barred list information to a supervisory authority does not apply if the Secretary of State is satisfied that the supervisory authority already has that information. Why has she decided to introduce that provision? It might, in effect, weaken the flow of information, given that it makes the action to send off the information to the supervisory authority an additional requirement.
Subsection (5) alters the obligation on the ISA to provide the supervisory authority with information to a “power” to do so, and it limits the supervisory authority’s ability to request information under section 50 of the Safeguarding Vulnerable Groups Act 2006 to a situation in which the information is required in connection with one of its functions. What was the thinking behind that change? Do the subsections not weaken the ability to make sure that everyone is kept informed and that the important flow of information actually happens? Why not take a belt-and-braces approach to ensure that the supervisory authority as well as the ISA knows what it needs to know?

Lynne Featherstone: We are back to the same push-and-pull in respect of what is proportionate and balanced. Clause 75 does indeed change what was a duty to provide prescribed information when the referral criteria are met, and amends it to a power to provide any relevant information when the referral criteria are met. That is a sensible and more proportionate approach to information sharing between the supervisory bodies and the Independent Safeguarding Authority, as it allows the supervisory body the discretion to make a referral when it has reached a decision about whether or not it is appropriate to make a referral and to decide what information is appropriate to provide.
For example, the Care Quality Commission might determine that an individual is no longer suitable to be a registered manager because, while engaged in regulated activity, that person harmed a patient or placed them at risk of harm. Following investigation into the care practices of a care home or clinic, the Care Quality Commission might decide to refer the worker to the ISA. In other words, the Commission will be able to do what it considers best to protect children or vulnerable adults. That is the right approach, because the Commission is first in line, given its responsibilities and remit. If it is involved, it can judge whether a case needs to be referred or whether there is another way to deal with it.
Clause 75 makes consequential amendments to section 47 of the Safeguarding Vulnerable Groups Act 2006 to provide a power for a supervisory authority to ask the Independent Safeguarding Authority if someone is barred from regulated activity with children or vulnerable adults. The ISA has a duty to provide that information. A supervisory authority can seek that information only if it is required in connection with the exercise of its functions. As ever, it is about a proportionate response and not giving information that is not relevant, necessary or appropriate under those circumstances.
In answer to the hon. Member for Kingston upon Hull North, the clause provides for a supervisory authority to apply to the Secretary of State to be notified if someone is barred or subject to a relevant disqualification order in relation to children or vulnerable adults.

Tom Watson: I am sorry to interrupt the Minister’s tour de force. The matter is immensely complex, so I seek clarification. I hope she does not find my question too simple. Can she define what “proportionate” means according to the clause, and who decides what is proportionate?

Lynne Featherstone: I think that is the point that I was addressing. If the Care Quality Commission goes in and makes a judgment that a case needs to be referred to the ISA for barring, it has made a judgment to take it one stage further in relation to someone being barred from regulated activity. If, on the other hand, the Care Quality Commission finds another means—it has a number of remedies for mitigating circumstances—it can apply a different and a more proportionate circumstance, but a judgment has to be made in the first place. Not everything is referred all the time.

Vernon Coaker: Will there be guidance on this, and will the guidance be statutory, given the importance of the proposal?

Lynne Featherstone: No, the guidance will not be statutory. We raised that matter last week. We do not believe that it needs to be statutory. We expect and hope that the bodies involved in providing regulated activity will follow the guidance because it is something that they would wish to follow. I cannot imagine that anyone will not do so.

Vernon Coaker: Does the Minister have a draft of this guidance so that the Committee can see the sort of things that are going to be included, or will the guidance be produced at a later stage for consideration by the Lords?

Lynne Featherstone: The guidance will be produced in due course, and we will work with all those who have an interest in this field to make sure that it is clear and gives them all the information that is needed. We will work with partners and providers across the board to make sure that it is accurate, helpful, as brief as possible and clear.
As I was saying, the information flows provided for will enable a supervisory authority to be advised of barring decisions relevant to their functions. Although a supervisory authority may apply to the Independent Safeguarding Authority in relation to whether a person is barred in connection with their functions, there is no proactive information flow for barring decisions in all relevant cases. That matter was raised by the hon. Member for Kingston upon Hull North. The Secretary of State will be able to confirm identity in relevant cases and ensure that supervisory authorities are advised of all barring decisions involving their professional functions.
Finally, clause 75 amends section 50 of the 2006 Act to provide the Independent Safeguarding Authority with a power, which is exercisable either on its own initiative or in response to a request from a supervisory authority, to provide such information as the authority considers relevant to the supervisory authority in relation to the protection of children or vulnerable adults. That will provide flexibility in relation to information flows between the Independent Safeguarding Authority and supervisory authorities, and help to prevent any safeguarding information gaps.

Tom Watson: I hope not to detain the Committee for too long on the clause. I think that I understand the direction of travel, but I am looking for more clarity—I tried to intervene on the Minister so as not to make a speech—on the nature of the guidance. She said that the Government would consult partners. Can she give me some idea who those partners are? What role will the Government play in drawing up the guidance? When will it be updated? Will Parliament be able to scrutinise it?

Lynne Featherstone: It is not statutory guidance. It is guidance that is best worked through with providers, supervisory bodies and the other authorities to which we will come: all those who have key interests and experience and can make the guidance absolutely clear for the avoidance of doubt.

Question put, That the clause, as amended, stand part of the Bill.

The Committee divided: Ayes 9, Noes 6.

Question accordingly agreed to.

Clause 75, as amended, ordered to stand part of the Bill.

Clause 76

Amendments made: 148, in clause76, page63, line19, after ‘officer’, insert ‘,
(d) any prescribed purpose’.
Amendment 149, in clause76,page63,line19,at end insert—
‘(4) After section 50A(1) of that Act insert—
(1A) ISA must, for use for any of the purposes mentioned in subsection (1), provide to any chief officer of police who has requested it information as to whether a person is barred.
(1B) ISA may, for use for the purposes of the protection of children or vulnerable adults, provide to a relevant authority any information which ISA reasonably believes to be relevant to that authority.
(1C) ISA must, for use for the purposes of the protection of children or vulnerable adults, provide to any relevant authority who has requested it information as to whether a person is barred.”
(5) After section 50A(3) of that Act insert—
“(4) In this section “relevant authority” means—
(a) the Secretary of State exercising functions in relation to prisons, or
(b) a provider of probation services (within the meaning given by section 3(6) of the Offender Management Act 2007).”’.—(Lynne Featherstone.)

Clause 76, as amended, ordered to stand part of the Bill.

Clause 77

Lynne Featherstone: I beg to move amendment 187, in clause77,page63,line24,at beginning insert—
‘(1) Omit section 93 of the Policing and Crime Act 2009 (which, if commenced, would insert section 112(2A) into the Police Act 1997 requiring copies of certain criminal conviction certificates to be given to employers etc.).
(2) ’.

Gary Streeter: With this it will be convenient to discuss the following: Government amendments 193 to 203.
Government new clause 16—Out of date references to certificates of criminal records.

Lynne Featherstone: I shall be brief, as the amendments are essentially technical or drafting in nature. Amendment 187 removes section 93 of the Policing and Crime Act 2009 which, if commenced, would amend the Police Act 1997 so that criminal conviction certificates, which include unspent convictions, would need to be copied to employers by the Secretary of State. Such a requirement would be contrary to the broader intention of clause 77, which will remove the requirement to copy criminal records certificates to employers.
As we will discuss when we consider amendment 208, clause 77 removes the requirement on the Criminal Records Bureau to issue a copy of a standard or enhanced criminal records certificate to the registered person, so that the certificate is issued to the applicant alone.
Government amendments 193 to 203 to schedules 7 and 8 and new clause 16 are either consequential or drafting amendments to ensure that we have made all the necessary changes and adjustments to part 5 of the Police Act 1997 and other relevant legislation flowing from the provisions in chapter 2 of part 5. I will not detain the Committee further on this group of amendments, but I can provide further details if necessary.

Amendment 187 agreed to.

Diana Johnson: I beg to move amendment 211, in clause77,page63,line24,at beginning insert ‘(1)’.

Gary Streeter: With this it will be convenient to discuss the following: amendment 212, in clause77, page63, line29, at end add—
‘(2) Amend—
section 113(A)(2)(b) of the Police Act insert “and whether this exempted question relates to work with children or the care of vulnerable adults or both.”.’.
Amendment 183, in clause80,page65,line6,at end insert—
‘(c) the information to be supplied in connection with such a request for the purpose of enabling the Secretary of State to ascertain whether the disclosure requested is to enable the individual to work with children or vulnerable adults or both.’.
Amendment 184, in clause80,page65,line12,after ‘arrangements’, insert
‘and stated whether the application was required for the purpose of working with children or vulnerable adults or both.’.
Amendment 185, in clause80,page65,line16,after ‘and’, insert
‘stated whether the certificate is to cover work with vulnerable adults or children or both, and’.
Amendment 186, in clause80,page66,line13,at end insert—
‘(d) a certificate is not up-to-date in regards of working with children or vulnerable adults unless the original application stated that it was required for the purpose of working with children or vulnerable adults or both’.

Diana Johnson: Amendments 211 and 212 would amend section 113(A) of the Police Act 1997, making it a requirement for a CRB check request to state whether the CRB check was required to enable work with vulnerable adults or children, or both. That is linked with the portability of CRB checks, which Sunita Mason called for in her report. The amendments would mean that the police could clearly see what the CRB check was being requested for and thus decide what information to release. The Minister will recall that during the evidence sessions we heard about the problems that the police have in deciding which information to disclose and its relevance. Amendments 211 and 212 are probing amendments, because the issue of how to deal with the practicalities of the police knowing for which sector the CRB check is required may already be in the Minister’s mind. I seek reassurance that Sunita Mason’s recommendation will be taken up by the Government.
Amendments 183 to 186 are about the Secretary of State’s general power to demand that certain information be provided with any request for access to a CRB check. Amendment 183 would give the Secretary of State a specific power to demand to know whether the CRB check had been requested to enable the individual to work with children. Amendment 184 would provide that an individual, when requesting a CRB check, had to state whether they wanted it to be subject to updating. The amendment would make it a requirement for the individual to state whether any application made under the updating process would be for the purposes of working with vulnerable adults or children, or both.
Amendment 185 would provide that the Secretary of State, when granting a CRB disclosure, had to state whether it was subject to updating. It would also require the Secretary of State to declare whether the CRB check was to cover work with vulnerable children or adults, or both. Amendment 186 would reinforce the amendments I have just described. It would add to the definition of up-to-date information given in clause 87. The amendment states that a CRB certificate
“is not up-to-date in regards of working with children or vulnerable adults unless the original application stated that it was required for the purpose of working with children or vulnerable adults or both”.
The amendments are designed to offer reassurance to an employer and to the police, by making it clear what the CRB check is required for. The Minister will know that there has been a great deal of correspondence to the Committee on the issue. Organisations are concerned about whether there will be enough information in CRB checks and how the separate categorisation of children and vulnerable adults will work. At the moment, we are a little unsure. I hope that the Minister will be able to reassure us. The amendments are trying to ascertain the Government’s thinking on this issue.

Lynne Featherstone: It is clearly important. Sunita Mason said in her report that the check should be sector-specific so that any portability may be clearly seen. Someone who has been cleared for work in the children’s sector will not be moving across to the vulnerable adult sector unless they have been cleared for both.
I am grateful to the hon. Member for Kingston upon Hull North for her explanation of the amendments. I appreciate that they are probing amendments. I do not think that they are necessary because their intention is already covered by the existing arrangements and the changes that we are proposing in the Bill.
When criminal record disclosures relate to working with children or vulnerable adults, there is no need for additional legal provisions to specify that both the individual enhanced criminal record certificates that are issued and any updates to such certificates are only applicable for work with children, vulnerable adults, or both. Furthermore, there is no need for further provision requiring a CRB application to contain a statement as to whether the applicant works or intends to work with children and/or vulnerable adults, given that the application form already provides for that. Eligibility for an enhanced criminal record certificate has to be, in any case, for one of the “prescribed purposes” that are set out in regulations. The purposes include working in
“regulated activity in relation to children”
and in
“regulated activity in relation to vulnerable adults”.
The type of work to which the certificate relates will therefore be clear to the applicant, the employer and the police when they make a judgment about what they reasonably believe to be relevant.
In deciding which locally held police information over and above the convictions and cautions that appear on the national police computer should be disclosed, the police will consider the prescribed purpose for which the certificate is to be issued. Such a purpose might be working with children, with vulnerable adults or with both. The update information that will be available under the new provisions of the Bill—we will come later to how updating will be done—will also take account of the prescribed purpose for which the certificate was originally issued. Therefore, if an update advises that a new certificate should be sought, that will be either because there has been a new conviction or new caution information since the original certificate was issued, or because there is new relevant information at local police level that relates to the purpose prescribed in relation to that certificate.
In broad terms, a certificate relevant to working with children will be updated for work with children, a certificate relevant to working with vulnerable adults will be updated for work with vulnerable adults, and a certificate relevant to both types of work will be updated for both. The system should not allow misuse of certificates or updates, which is when they are issued in relation to one sector but are used to obtain work in another sector. That is what the system is for. However, we will ensure that there is clear guidance for applicants and employers that spells that out and emphasises the link between the updating system and the prescribed purpose for which a certificate was originally issued.

Diana Johnson: I am grateful to the Minister for going through that information so clearly. Can she envisage a situation when, for instance, a CRB check with information about working with vulnerable adults is taken to an employer? Could there be confusion for the employer or a small voluntary organisation if they are presented with a CRB check that has information that relates to adults when there are concerns about the person working with children? For instance, someone who has worked with vulnerable adults may have been involved in stealing, or there may have been allegations of theft, which means that they are not suitable for working with children. I am trying to understand whether there could be confusion for employers and voluntary sector groups about when a CRB check is appropriate for a particular sector.

Lynne Featherstone: The clear message is that if the regulated activity is with children, the certificate has to clear the person to work with children, and if the regulated activity is with vulnerable adults, the certificate has to clear the person to work with vulnerable adults. The guidance must ensure that it is crystal clear that there can be no switching and no swapping, so that there is no confusion. We do not want someone who is suitable in one sector—or unsuitable in one sector, for that matter—somehow convincing an employer that because they have a CRB check certificate that shows they are okay to work with adults, they must be okay to work with children. That is clearly not the case, and I thank the hon. Lady for putting it on record once more.

Diana Johnson: On the basis of what the Minister has said, although it will depend on whether the guidance makes clear what is happening with CRB checks, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Diana Johnson: I beg to move amendment 208, in clause77,page63,line25,leave out paragraph (a).

Gary Streeter: With this it will be convenient to discuss the following: amendment 209, in clause77, page63, line27, leave out ‘(b)’ and insert ‘(a)’.
Amendment 210, in clause77,page63,leave out lines 27 to 29.

Diana Johnson: If enacted, paragraph (a) will end the practice of CRB checks being sent to the registered person sponsoring or requesting the CRB check, usually an employer or voluntary organisation.
A number of organisations, including Girlguiding UK, have called for amendment 208. Those organisations fear that handing CRB checks to group leaders will cause personal embarrassment. In its submission, Girlguiding UK talks about the problems that it envisages:
“This clause would reduce the number of people volunteering. If a prospective volunteer has a previous criminal history they may not want to show it to a local Guiding Commissioner who may be known to them. They are likely as a result not to choose to volunteer, even if their criminal history would not prevent them from volunteering with Girlguiding UK.
If a prospective volunteer did choose to show a Guiding Commissioner, who are themselves volunteers, a certificate with offences recorded it is likely that they would not have enough knowledge of the law to interpret the information. This puts far too much responsibility on Commissioners who may leave because they are unable to handle the pressure of taking these decisions without the necessary expertise or support. There are over 4000 local Commissioners so it is not feasible to train and support all of them to make sensitive judgements about whether a past offence was a risk to young people and how to mitigate those risks.
If only the applicant received the certificate and showed it to their local Commissioner who made a decision about their suitability to become a volunteer then these decisions would vary depending on who took the decision. Girlguiding UK uses an e-bulk system so very few certificates are sent to the headquarters but those that are will be considered by trained staff that can make a risk assessment and, equally importantly, put support measures in place for the volunteer if needed.”
On the basis of what Girlguiding UK has said, there are genuine concerns about the clause’s provision for CRB checks to be sent only to the individual. The amendment would omit the relevant paragraph.
I also want to raise the issue of time delays in the process that is being adopted. Will individuals have a right of appeal if they are not happy with the CRB check that comes back? How long can someone keep saying to an activity provider, or their employer, either, “I’ve forgotten the certificate,” or, “I’m waiting for it to come.”? What time scale does the Minister envisage before employers can say, “You need to bring that certificate in today.”? I know that there are time scales for processing CRB checks—the outer limit is 60 days, although most are dealt with in a much shorter period—but I would welcome the Minister’s view on how organisations would deal with people claiming that there was a long delay in receiving their certificate, perhaps to get access to children or vulnerable adults, which we would all be concerned about.
Amendments 209 and 210 propose leaving out paragraph (b) of clause 77, which, if enacted, would end the process of the police passing brown envelope information to an employer. I am sure that the Minister will recall an example from an ongoing police inquiry that was given in one of the evidence sessions. The police felt that it was important to tell a prospective employer that there might be an issue connected to the individual, but did not want to disclose it in the CRB check because it might alert the individual or cause problems for the police investigation. The clause would remove the ability for the police to provide information in a brown envelope. The amendments are probing ones, to ascertain why the Government feel it important to introduce the provision and deprive the police of the opportunity to use that method to impart information that might be important. Should we not do everything we can to assist the police?

Gareth Johnson: Does the hon. Lady not share my concern that the current approach is very much a cloak and dagger one, and does she not agree that the clause seeks to bring information into the open domain and make things fairer for everyone?

Diana Johnson: I am certainly interested in ensuring that information is out there, and that everyone who needs to can access it but, unfortunately, I am not sure that that is the main thrust of the Bill. There will be times when the police are carrying out sensitive investigations and need to be able to send information to employers about their concerns about an individual. I think that most people would say that they would like the police to be able to do that.

Gareth Johnson: Perhaps the hon. Lady could suggest what would happen if that information were wrong. The applicant would have no redress. It is not unknown for information passed on by the police to be incorrect, and the applicant has no way of knowing if that is the case. That seems an underhand way of handling information, and it is the very reason why the clause is in the Bill—to ensure that, hopefully, in the future we have a far more open system.

Diana Johnson: I would be interested to know from the Minister the rationale for including the clause. Is it because a whole spate of wrong information has been provided? I am not aware that that is the case, and have not seen such evidence produced as a reason for taking that power away from the police. If the Minister explains that that is the rationale and can give evidence to that effect, I shall be interested in seeing it.

Michael Ellis: I think that I am right in saying—I will be corrected if I am wrong—that the clause removes the obligation on the part of the police but does not remove their discretion to retain the use of brown envelopes. That is an important distinction. To reiterate the point being made, is the hon. Lady not concerned that the very fact that the police may have a suspicion that induces them to notify a civilian that someone may, in effect, be a criminal, without any conviction, is tantamount to the provisions of natural justice?

Diana Johnson: I think that the hon. Gentleman would accept that soft intelligence could be disclosed in a CRB check that would not constitute a conviction but might be information that it was absolutely correct for the police to pass on. I am not sure that we will ever say that convictions are the only information that the police should disclose. That would be wrong. We need to look to history. In the Huntley case, for instance, Humberside police held information about a series of allegations against Ian Huntley that did not result in convictions, but it was soft intelligence that needed to be passed on.

Michael Ellis: Soft intelligence is another form of hearsay, rumour or gossip. Those of us who have worked in the criminal justice system have encountered dozens of examples of cases in which rumour, gossip or soft intelligence proved to be quite wrong. Sometimes it was malicious, but on other occasions it was simply misguided or erroneous. Such soft intelligence might have serious and unpleasant consequences for the individual who is subject to it.

Diana Johnson: We will move to the Government’s proposed appeals procedure on CRB checks and the disclosure of information. The amendment deals with the passing on of brown envelope information. As I understand it, that would usually centre on an ongoing police investigation in which information was very sensitive, and where its general disclosure might result in the investigation getting into difficulty. However, it is important that the police feel that such information will be passed on.
Will the Minister confirm whether the police retain a common law power to continue to pass on such information? If they do, the practice might carry on in the future. Is the threshold different between the provisions in the clause to remove the brown envelope situation and the common law power? Do the police have to meet a higher threshold on divulging information, or is the threshold the same? I would be grateful if the Minister would confirm that.

Clive Efford: Having listened to the comments of my hon. Friend the Member for Kingston upon Hull North and the hon. Member for Northampton North, I have one or two questions for the Minister. We are not dealing with a court of law. I am not a lawyer—I always feel relieved that I am not—but I understand that the issue relates more to employment law than to criminal law. From my involvement with disputes and industrial tribunals, when I was an elected member in local government many years ago, I understand that a lower level of evidence is required in employment law for making decisions about employment matters. I see that my legal adviser on the Conservative Back Bench, the hon. Member for Northampton North, is confirming that.
Effectively, we are dealing with people in a form of employment, albeit voluntary, and for whom checks will be undertaken. I wonder what difference the clause will make if the police can still pass on soft information that is not proven or does not arise from any sort of conviction. As I have already mentioned, my former life was in local government. I was the chair of the social services committee when child protection issues were very sensitive. In my local authority, but before my time, we had the death of Kimberley Carlile, and after I entered the local authority there was the inquiry and everything that followed. That case made people very concerned about child protection issues, and they erred on the side of caution in such matters. Are not the police likely to apply that right across the board and, in effect, nullify the intentions of the clause? In child protection issues, people are rightly loth to make mistakes in the information they record and are likely to set a higher standard for that information and ensure that it is passed on to ensure that children are protected to the highest degree, even though there might not be a conviction behind it.

Lynne Featherstone: I shall deal with the hon. Gentleman’s point first. Coming from Haringey, which has gone through the cases of Victoria Climbié and Baby P, I know that he is entirely right. When it comes to child protection, people are extremely nervous—rightly so—of all that has gone before. However, it does not mean that we cannot move forward with the Bill.
As for the brown envelope information to which the hon. Member for Kingston upon Hull North referred, as my hon. Friend the Member for Northampton North said, we are simply removing the obligation of the police. It is not that they will not, at their discretion, use common law powers to pass on information that they consider important. I stand to be corrected, but the example used in Committee was of a person the police were currently investigating as a paedophile, and who had applied for a job with children. I cannot imagine a police force that would not use common law powers to pass on that information to the would-be employer. That is the nature of the difference.

Mark Tami: Will the Minister accept that one of the problems of the Huntley case was that a lot of the information was not passed on?

Lynne Featherstone: Systems and procedures have completely changed since then, which is why the previous Government introduced—with the best of intentions—the vetting and barring system, and why we are scaling it back to what we regard as a more proportionate common-sense level. The police will use the common law powers and disclose information if it is necessary to do so, and I argue that the example given by the police chief was a case when it was necessary to do so and that doing so was proportionate to the aim that was sought. It is a different test, but the police are accustomed to using their common law powers.

Diana Johnson: Will the Minister explain the difference between what is being abandoned under the Bill and the common law powers, so that I can understand correctly the test the police will have to apply?

Lynne Featherstone: The police are not under an obligation to pass on all information that might be of a brown envelope variety, but they can use their discretion if they so wish.

Nicola Blackwood: To ensure that I have understood matters properly, will the new system allow the police not to be obligated to hand over information that they do not feel should be handed over? At the moment, they are required to hand over information even if they would not want to hand it over. Is that the case?

Lynne Featherstone: Yes, indeed. My hon. Friend is right.
Let me go to the heart of amendment 208. It would remove clause 77(a) whereby the CRB certificate would no longer be sent to the employer, but only to the job applicant. The amendment would actually negate the whole point of changing the system, because there would be no opportunity for the person who had applied for a job—a job to be given, or not, perhaps on the basis of information received—to make representations before the employer saw what was on the certificate. Our intention throughout is to be proportionate.
We shall go on to the delay about which the hon. Lady voiced concern earlier, but I hope she can see that the whole point of the certificate going to the person in an employment situation is for that individual to make a decision. First, they will be able to see what is included—because not everyone knows what will be on their certificate. Secondly, they can make a judgment as to whether the information is correct or whether there has been a mistake, perhaps of duplicated identity. It gives the person the opportunity to dispute the information and get it resolved in a relatively speedy time prior to the employer being presented with the certificate.
The hon. Lady raised the issue of eBulk. My understanding is that that can continue under this system, and therefore she is absolutely right that one of the concerns was around sensitive information about the girl guides or the scouts being given to a local person who might know the person in the village in a social context, with all sorts of ramifications if information is made available. Therefore, the information can still go to the central organisation, and the eBulk system will continue to be available.

Diana Johnson: Could the Minister explain that to me? As I understand the clause, the individual receives the CRB check. Is the Minister saying that the individual then takes the CRB check in to the girl guides, scouts or wherever and they will then send it off to their central office? Is that what the Minister is saying? Or is she saying that the organisation that they are sent to will also get a copy of the CRB certificate?

Lynne Featherstone: No. It is my understanding that it will be supplied to the individual, and the individual can send it to the central location. Does the hon. Lady want to intervene again?

Diana Johnson: Forgive me; we just need to be clear. The onus is still on the individual. The individual has to provide it to the scouts or girl guides and then they need to sort out how they will deal with it internally. Is that what the Minister is saying?

Lynne Featherstone: Yes, that is what I am saying. To clarify the brown envelope point a little further, currently if the information might be relevant to the post required, it can be disclosed to the employer. It is a low threshold at the moment—it might be relevant. The “reasonably believes” test is different from the “might be relevant” test.

Vernon Coaker: I understand the point that the Minister is making about the process by which the certificate goes to the applicant and then on to the employer. What safeguards are there to prevent someone tampering with the certificate before it goes on to whoever they choose to send it on to?

Lynne Featherstone: If the hon. Gentleman is asking about fraud or the possibility of tampering or doctoring, the certificate is a secure document, and it is used together with an online verification process, which will ensure that employers are protected against potential fraud. The certificate will be no less secure than a driving licence, university degree or any such similar piece of information.
On the speed of dispute resolution, which was another concern raised by the hon. Lady, the Criminal Records Bureau anticipates that such challenges, which it refers to as disputes, will still be completed in about 4 weeks in the majority of cases. In March 2011, the CRB resolved 97.9% of disputes within 21 days.

Diana Johnson: I am grateful to the Minister. I understand that we are going to debate an extension of the appeals procedure when we move on to a later clause. The procedure will be open to anyone who wishes to dispute the accuracy or whether information should actually be on the CRB certificate, so if there is a three-stage process, which is my understanding of the amendment, is the Minister still confident that that will be dealt with within 4 weeks? If we have another police force getting involved, a potential referral to the independent monitor, and also potentially an application to the Secretary of State if they believe the information is inaccurate, with the greatest of respect to the Home Office, I know that things can take rather longer than we would like them to take. So, is 4 weeks really how long it will take?

Lynne Featherstone: I do not think we are going to put a time limit on it. The hon. Lady is right—there may be more than one police force and more than one process to go through. Nevertheless, it will not be too tardy. Sunita Mason put an outside frame of 60 days on any process in terms of disputes. That is something that we will be working through, but I do not think it will be particularly tardy. It is more important to make sure that that person has the right to dispute the information so that they can deal with a false allegation or a mistaken identity prior to the employer seeing it. Of course, they will explain to the employer that there has been a mistake, or they will be in conversation with the organisation about why they cannot take up their voluntary post until they are cleared. They will be able to have that conversation and explain why they are not able to move as quickly as they would have liked. The employer will make of that what they will. I am assuming that if they want the volunteer, and the volunteer is talking to them and explaining why there is a delay and they are taking up a dispute and asking for resolution, the employer will understand and wait.

Diana Johnson: We all read the papers, and we know that paedophiles can be wily people, who can use all sorts of ways to access opportunities to be with children. If an individual wants to get hold of children for purposes that we would all think are dreadful, they may well be able to say, “The certificate hasn’t come,” or “I’m considering appealing” or whatever. They may be able to put themselves in a position where they are getting access to children, because they are the only ones who have seen the CRB certificate. The employer or organisation is at a disadvantage in not knowing information about someone that they should know.

Lynne Featherstone: If it is regulated activity, they cannot begin to work with children or vulnerable adults before that certificate is through. That is the nature of it. There will be opportunity to debate the lesser level of information.
The hon. Lady asked about adding delays to the process. Over the past few months, in general terms, the CRB has made massive improvements in the processing times for certificates. I should know, because I am the Minister who has to sign off all the letters. People used to complain about how long the process took, but those times have now been enhanced considerably. In April 2011, the CRB was issuing 95.1% of enhanced certificates within 28 days. In March 2011, that figure was 95.4%. There have been changes to the system that have allowed some centralisation and computerisation, which has made a huge difference.
I am grateful to the hon. Member for Kingston upon Hull North for the explanation of the amendments, but she is seeking to reverse the whole purpose of clause 77, by providing that registered bodies continue to receive a copy of the CRB certificate. While we accept that clause 77 may mean that employers change how they operate criminal record checking, we are not persuaded that it would be a significant change. We firmly believe that any marginal inconvenience caused to employers is outweighed by the much increased fairness in the disclosure process.
We have to remember that it is important that all the users of the CRB system, such as the individual applicants, employers and voluntary bodies, have full confidence in the disclosure service. We have to ensure that it is proportionate, so that the need to protect the vulnerable is balanced against the rights of the applicants that use the service to have the opportunity to question, dispute or make representations on any information that might blight their career chances.
The issuing of the certificates was one of the issues looked at by the Government’s independent adviser for criminality information management, Sunita Mason, who was appointed by the previous Government. I have found her a most competent and able adviser in her recent review of the criminal records regime. Hon. Members will remember that she gave evidence to the Committee. As we have said, one of the biggest criticisms of the criminal records process—the one that has been recognised by the courts as problematic—is that where information exists, particularly non-conviction information released by a police force, the applicant does not have a chance to review and challenge that information before it is released to an employer. Even when the applicant is successful in disputing any information post-issue, the problem is that once the employer has seen that information, they do not forget. They have a no-smoke-without-fire approach. Once the employer has seen that, the applicant can make all the representations they want, saying, “It wasn’t meant to be on there; it’s a mistake,” but it is extremely difficult to believe. Some of us will have had constituents come to us with information on CRB certificates involving some allegation made about them to the police. I have often come across such cases. By providing the certificate to the applicant only, the Bill puts the applicant in control of the disclosure of the information contained in their criminal record certificate.
Also, if someone receives a certificate, reads it and sees information that they know to be true, they might simply withdraw their application for the job. They will not proceed, because they will be discovered in the end. They can dispute that information, but the information is there.
Clause 77 allows the applicant to make a request to the CRB for a review. It then allows the applicant the opportunity to approach a prospective or current employer and provide further explanation of a conviction or other information contained in the certificate. One would hope that ultimately, depending on what the conviction or caution is, a developed employer would not simply dismiss the person but might work with them, depending on what they thought about the other checks and references and what else the person had been doing with their life. A CRB check is not the beginning and end of employment or volunteering.
The provisions work together with the updating provisions in clause 80. The applicant would be issued with one certificate and would use that certificate for future applications, as an employer will be allowed to check for updates on the updating system. As I said, that provides for a fairer system. Some 92% of criminal record certificates are clear. In such cases, the applicant will be able to pass a copy of the certificate to their future employer or the voluntary body straight away. Even in the remaining 8% of cases where the certificate contains a conviction or other information, the applicant may not wish to dispute it, so again a copy of the certificate can be passed quickly to the employer.
A very small minority of cases in which the applicant wishes to dispute the information, will involve some delay for the employer or voluntary body in receiving a copy of the certificate, but overall, it is a much more proportionate approach and gives the applicant an opportunity to dispute the information. I hope that I have persuaded the hon. Lady of the case for the provisions and that she will accordingly agree to withdraw her amendment.

Diana Johnson: I have listened carefully to the Minister, but given the strength of opinion that has been conveyed to the Committee in the written submissions from various organisations, I would like to test the Committee’s view of amendments 208 to 210. I am not sure what is to be gained by removing the subsections from the Police Act 1997.

Question put, That the amendment be made.

The Committee divided: Ayes 5, Noes 10.

Question accordingly negatived.

Amendment proposed: 209, in clause77, page63, line27, leave out ‘(b)’ and insert ‘(a)’.—(Diana Johnson.)

Question put, That the amendment be made.

The Committee divided: Ayes 5, Noes 10.

Question accordingly negatived.

Amendment proposed: 210, in clause77,page63,leave out lines 27 to 29.—(Diana Johnson.)

Question put, That the amendment be made.

The Committee divided: Ayes 5, Noes 10.

Question accordingly negatived.

Question put, That the clause, as amended, stand part of the Bill.

Diana Johnson: We had a debate about the CRB check being sent only to the applicant and not to the employer or the charity. I understand the position that the Minister has taken, but I want to use this opportunity to highlight the organisations that have sent in quite lengthy submissions. In particular, I want to refer to the submission from Rob Dawson, who is the institutional compliance officer at the university of Chester. His comments are based on experience in his day-to-day work, which, he says,
“has, since the inception of the CRB, involved overseeing CRB checking of students at the University of Chester. These experiences are further supplemented by my work with the CRB and ISA as Chair of the CRB’s Education Consultative Group. I have also been a member of a Universities UK/GuildHE working party”,
which has been involved in the vetting and barring scheme in previous years. He raises a particular concern about clause 77 for higher institutions:
“The University of Chester undertakes approximately 1,700 CRB checks per annum, chiefly in respect of applicants aged 18/19. Most checks are on students who enrol on programmes of study that involve regulated activity, e.g. initial teacher training, nursing, midwifery and social work, and most are undertaken between August and September, shortly before the commencement of the academic year”.
There is obviously huge pressure on that institution to process those checks to ensure that all those students are properly eligible to start their courses. Under the current system, a higher education institution receives copies of the CRB check, and the institution can formalise that it is appropriate for the student to be on the course and that everything is satisfactory. His concern about the new changes is that a great deal of administration will have to be put in place. Although he does not say so, those 18 or 19-year-olds who are moving away from home—perhaps for the first time—and starting at a higher education institution will receive the CRB checks at their home addresses, which may be some way from the university of Chester. He suggests that having to chase them to ensure the CRB checks are received and processed places a logistical burden on the university. That concern is genuine and it would be helpful if the Minister, with the help of her officials, could give some practical thought to how the measure will affect the HE sector that runs courses in the areas where regulated activity will apply.
Will the Minister consider the suggestion that Rob Dawson sets out in his submission, which he thinks might be helpful? He asks for consideration to be given to
“the CRB issuing the Registered Body”—
the university of Chester or another higher education institute—
“with a letter, sent at the same time as the disclosure is dispatched to the applicant, stating that a disclosure (including Number) has been sent to the applicant at a particular address.”
He believes that such a system would be neither costly nor burdensome for the CRB and would enable registered bodies that undertake a large number of checks at particular periods to know whom to contact for sight of the disclosure document. He goes on to state that his proposal accords with recommendation 4 of Sunita Mason’s report. It would be helpful if the Minister considered that suggestion.
Rob Dawson also comments that an impact of the change on higher education institutions might be a loss of income, because
“institutions are unable to delay the start date of a course for individual students.”
That might mean that the university loses out on the finances for that year for that student, but also that the student is delayed for a further year before commencing the course. He states that it is often difficult if a student has to wait and start a course a month or two later. A lot of information is contained in the inductions for the types of courses that the measure relates to, which the student will have missed. He makes some genuine points about the effect of the clause on a sector-specific problem and I would be grateful if the Minister considered those.
Will the Minister also have regard to other submissions, such as one that arrived only yesterday, from the Sport and Recreation Alliance and the Child Protection in Sport Unit, which are well respected bodies? They raise concerns about the clause and some of the issues that I have already discussed in relation to Girlguiding UK. They, too, are concerned about the big administrative burden on sports groups in dealing with the change and about chasing up CRB checks with volunteers and individuals. Will she give some further thought to organisations, groups, charities and sports groups that might have very limited resources in tackling the change?
I note that the list of organisations that are asking the Minister to consider the measure again include the Lawn Tennis Association, British Judo, British Rowing, Volleyball England, the Football Association, Badminton England, England Netball, and the British Canoe Union. That is a full list of sports activities that take place around the country. The organisations are obviously raising genuine concerns about how the provision will impact on their sports. It would be helpful to consider whether a sector-specific approach should be adopted for the sports sector, as it might be for HE, which we have discussed.
The submission from the Sport and Recreation Alliance and the Child Protection in Sport Unit asks whether there could be a two-disclosure system and whether there could be a delay, which has been discussed as an option in other submissions to the Committee. Perhaps the CRB check could be sent to an individual and, after a certain length of time, a copy could be sent to the organisation or the employer. Will the Minister comment on that suggestion?
The Committee received a submission from a local group, the Wiltshire and Swindon Activity and Sports Partnership. It raised some clear concerns about the one-disclosure procedure that will operate under clause 77. It believes that there will be problems. What it says in particular about sports organisations is that
“there can be a less formal structure and less opportunity for the ‘handing over’ of this information. In addition the infrastructure of many sporting and recreation organisations relies on the centralised management offered by a national governing body. The centralised management by an NGB ensures consistency across a sport (from club to club); that decisions are made by an experienced individual; and that a club level volunteer is not overburdened with information about individuals they know on a personal level that will affect their relationships and ultimately may influence their judgements.”
Those are the concerns that I think Girlguiding UK raised in its comments.
There is also a submission from TMG CRB. From what it says, I understand that it is the second-largest umbrella body in England and Wales, processing 500,000 CRB applications since 2002. Its submission goes through, in full detail, some of the problems with clause 77. It also picks up and comments on the issue of fraud. I want the Minister to address that again. I know that in her response to my hon. Friend the Member for Gedling she said that she did not think that there was going to be a problem. TMG CRB states:
“A vital part of the Registered Body (RB) administration role is to ensure that a Disclosure has been produced for the correct applicant. This will be even more critical with the introduction of portability. The RB should always carry out a data matching exercise, ensuring the ID check is carried out rigorously and personal details printed on a Disclosure match those on the Disclosure application. We can evidence many cases where a Disclosure has been produced with incorrect personal details including submissions made via eBulk. This includes a case where a date of birth error resulted in a clear Disclosure being produced for an individual who was guilty of murdering a child. Without a copy of the Disclosure, an RB cannot carry out this quality assurance role. The applicant now has a ‘clear Disclosure’ to present to a subsequent employer. Any online update would be based on this erroneous Disclosure.”
TMG CRB is raising genuine concerns about the effect of only providing the CRB check to the individual. We should note the experience of that particular organisation, which has made thousands of applications.
I also wanted to comment on the submission by the Churches, because the Churches have been leading the way in making sure that their safeguarding policies are as robust as possible in light of the experiences, particularly in the Catholic Church. In its submission, which I have quoted before, the Christian Forum for Safeguarding raises genuine concerns for the Churches and about how disclosure to the individual will affect the Churches in particular. It states that in churches
“decisions there are made…centrally,”—
again, the same as Girlguiding UK—
“removing the difficulties of managing such challenging matters where volunteers are in the management/‘employer’ role as well as in the ‘employee’ role. Currently, the only people who see the CRB disclosure in most churches are individuals in a safeguarding role trained to make the required/necessary judgements in relation to safeguarding and the individual who receives his/her own disclosure. The proposed system needs amending—for example, to enable the provision of a CRB disclosure to the registered body after a specified time gap”—
I referred to that earlier—
“during which the individual can challenge accuracy”.
That would give a little reassurance to a church if it had not received a CRB check from an individual and it was concerned. If, after four weeks, it obtained a copy, that might provide that reassurance that the churches currently say they need. Will the Minister look at that as well? Will she comment on the guidance that will be available on this issue and whether it will be statutory?

Clive Efford: I have become more concerned about the clause as our discussions have gone on. I am the chair of the management group of a voluntary organisation with 13 acres of sports facilities, which provides a wide range of sporting activities. What has come through in much of the evidence supplied to the Committee is the fact that many organisations rely on centralised bodies to make decisions relating to the information on CRB checks, one purpose of which is to provide consistency. The example cited by my hon. Friend shows that people, such as me, who run such organisations in our spare time are volunteers. We rely on centralised organisations to make decisions. Under the current arrangements, they would be the recipients of the information.
The system is automated, and sport is one of the areas involved because of the wide range of volunteers who help to organise such activities in the community for vulnerable groups and children. We must bear in mind the loose and voluntary nature of those organisations; for example, people who run football teams often do so in their spare time because of the sheer pleasure that such facilities provide for young people in the community. Such tasks are onerous, and the arrangements place the responsibility on such people to chase up individuals who may have left the information behind the clock on the mantelpiece, or for possibly more worrying reasons might want to delay its disclosure.
We all respect a person’s desire to have the opportunity to correct information, but at the same time, we must put the protection of young people at the heart of what we do. One of the criticisms of the existing arrangements is that the system is overbearing and burdensome on voluntary organisations. However, those organisations are saying that the provisions under the Bill will do exactly the opposite and will place a far greater burden on local sports organisers, for example. They will have to chase up the checks to make sure that they are provided so that they can send information to the centralised organisation to make decisions.
There is a boxing club at my youth club, and the Amateur Boxing Association makes the centralised decisions and is the governing body. People would have to chase up the individual, send the details to the governing body and wait for a decision, but all those involved in the boxing club are volunteers and help in their spare time. Far from being a liberating change to the arrangements, the provision will be more onerous on the very people at the sharp end who are volunteering and providing their time.
What success will the change have? What information will be recorded on the check? It is likely that the police, when placing information on the checks, will err on the side of caution because of what is involved. What are the consequences for the police if they say that certain matters are not relevant and then suddenly they are? We all know what follows when there are major incidents relating to child abuse cases. Quite rightly, a review takes place to find exactly what went wrong. Everyone involved is loth to be criticised for having let something slip through.
I suspect that because people will err on the side of caution, it will negate the intentions of the clause. At the moment, they have no discretion—they must disclose—but in future, they will have to make decisions. If they lack the time to carry out effective, detailed reviews of all the information in front of them, I suspect that they will make quick decisions: “That’s relevant to children; that has got to go in.” I doubt whether it will reduce the amount of information not backed up by criminal convictions that is passed on anyway.
The real concern is the extra burden that the measures will place on the very people we should be seeking to relieve of such responsibilities. The Lawn Tennis Association and other sports associations have said that due to the very nature of how sport is organised and how people become involved in it, the opportunity for mistakes or delays that could have catastrophic consequences is enormous. We may want to return to the measures later. I sincerely hope that the Government will think again and, given the evidence that numerous organisations have provided for us, reconsider their position on the clause.

Lynne Featherstone: Before I answer as many points as I can, I bring the Committee’s attention back to the main purpose of clause 77, which is to enable disputes to be resolved. We should not lose sight of how important that is to the rights of the individual in a situation where they can be deeply discriminated against in their job prospects, with life-affecting results. That is the purpose of the clause. There might be a slight delay every now and then, but it will be totally outweighed by the benefits to the overall process of enabling disputes to be resolved.
The hon. Member for Kingston upon Hull North referred to one of the submissions as having to do with Sunita Mason’s recommendation 4. Recommendation 4 reads:
“I recommend that a new CRB procedure is developed so that the criminal records certificate is only issued directly to the individual applicant”.
The reference might be wrong.

Diana Johnson: The reference was actually to the submission from Rob Dawson. I think he said that the proposal accords with the recommendation, because it involves sending a letter. The CRB check is not sent to the higher education institution; the institution receives a letter saying that the CRB check has gone to the individual. That is in the spirit of the recommendation.

Lynne Featherstone: I misunderstood what was being said.
Both the hon. Lady and the hon. Member for Eltham raised the issue of the small or voluntary local sports group that will be greatly burdened. Those groups can still use a larger organisation to submit CRB applications, such as the scouts, the guides or even the local authority. That happens now, and it will continue. The little group can use an umbrella organisation. The CRB will still go to the individual first, but that is how the application can be made.
I listened to what the hon. Lady said about the burdens on higher education institutions. She used the example of Chester university. Students must complete a variety of paperwork before being accepted on any course. They must get themselves together in a great many ways in which they are not necessarily practised, but they still manage to enrol properly. After they enrol in college or university, they must sort out their course, their accommodation and their student loan. We should not underestimate the ability of 18 and 19-year-olds to get their house in order. I heard what she said about having to chase unwilling 18-year-olds to submit their certificates, but they are chased for all the things that they must submit in order to enrol in a college. I do not think, particularly in training colleges—I think nursing and teaching were mentioned—that those students would be irresponsible and not able to understand that before the course begins they need to have cleared and gone through the CRB. There is so much to do when someone goes to college, and that is what people do. I accept that colleges will need to modify their processes, but I do not think that it is for me to recommend how they should do it. I am sure that it is not beyond their ability to deal with those issues, because the admissions process itself is burdensome. That is one part of it, but as I said, the pull-back is to the fairness of the situation and to the ability of an individual to dispute any untoward, unfair, irrelevant or wrong information or a wrong identity.
I do not favour the idea of sending a letter or the certificate at a later date. The person who enrolled might not turn up. A job applicant might not still be doing the same thing. I do not think that a time lag will be helpful to the safeguarding intentions that we all have for the process that we are developing.

Diana Johnson: It was certainly not my intention to say that any information should be disclosed in the letter, other than that the CRB check had been sent to the individual. I do not think that there will be a problem with safeguarding personal information. The letter would just tell the employer or organisation that a CRB check had been issued. That was the purpose of the proposal.

Lynne Featherstone: I do not think that it is for me, on my feet in Committee, to say whether an idea is good or not. I hear the issue that the hon. Lady is raising, and I am happy to have another look at whether anything can help in those situations. However, I am not persuaded by the argument that things should be done separately.

Clive Efford: I am grateful to the Minister; she has been accommodating. May I clarify the business about checking factual information? The information is either correct or not correct. If the information was disclosed simultaneously to the registered authority and the individual, and the individual goes to the authority and says, “I am disputing that because it is wrong,” and it is found to be wrong and corrected, have we balanced the harm done to that individual against the potential harm to vulnerable individuals such as children? Are we getting that balance right?

Lynne Featherstone: Obviously the Government believe that we are getting it right and that we are rebalancing the system in an appropriate and proportionate way. We will just have to leave that question, because we simply do not agree with the Opposition. I was just going on to the issue of fraud, which the hon. Member for Kingston upon Hull North raised, but I think that I have already answered most of the questions on that topic by saying that the checks will have the same status, authority, safety and security that one would have with a driving licence or similar important document.
Regarding the time lag of four weeks, the applicant may have withdrawn the application in that time, so sending a letter, or even, as I think was also suggested, a copy of the certificate, at a later date would not be appropriate. A situation can change in four weeks. What is quite miraculous about the updating process, which we will come to later, is that someone can do it literally within 10 minutes if they go online. I think that the portability of CRB checks, which has long been an issue, will be welcomed by all parties.
The hon. Member for Eltham said that the issue was about disputing not just the accuracy of the information, but whether the information is relevant and ought to be disclosed, because the process has to balance everyone’s rights. There is a whole range of possibilities for disputes, even before we get on to the processes when there is a double identity—when a person receives someone else’s record rather than their own because they have the same birth date or the same name as another person. That is one of the mistakes that happens in the CRB system from time to time.

Tom Brake: I hope to be helpful to my hon. Friend by giving her one example when the ability to check CRB certificates would have been very helpful. I have a constituent who did not get a job with BT. He applied to obtain his CRB and found that it stated that he had been charged with possession of an offensive weapon. He had not been found guilty of that, however; he was charged with being in possession of a sharp implement, because he was carrying a Stanley knife. If he had had advance sight of his CRB, and if it had been possible for him to change it—I do not know whether it is, and we are investigating that at the moment—so that the CRB stated that he was in possession of a sharp implement, he might have secured the job with BT, but he did not.

Lynne Featherstone: My hon. Friend makes a helpful point. I am sure that Members on both sides of the Committee have examples of information that has appeared on a CRB certificate that they cannot get removed for love nor money, even when it is wrong.
I wanted to talk about the registered body. It has to do an identity check with the applicant at the point of submission. That will still happen; it will not change in any way. What happens now in terms of registered bodies is the reason why they get the status of registered body. They have to do the background checks on the people they are supporting to get the CRB check.
The hon. Member for Kingston upon Hull North raised the issue of Churches—she mentioned the Christian Forum for Safeguarding—and the decisions that were made centrally. I think that I answered that point previously. She asked again whether the guidance would be statutory. It will not be statutory; it will be guidance, as I have previously explained.

Question put, That the clause, as amended, stand part of the Bill.

The Committee proceeded to a Division.

The Chairman’s attention having been drawn to the fact thatMr Shannonhad given his voice with the Noes and had subsequently voted with the Ayes, he directed the hon. Member’s vote to be recorded with the Noes and directed the Clerk to correct the numbers.

The Committee having divided: Ayes 10, Noes 6.

Question accordingly agreed to.

Clause 77, as amended, ordered to stand part of the Bill.

Clause 78

Question proposed, That the clause stand part of the Bill.

Diana Johnson: The clause is about amending the Police Act 1997 to introduce a minimum age of 16 for applicants for CRB checks, which was widely supported in evidence. I would like to ask the Minister why the minimum age for CRB checks is higher than the age of criminal responsibility. Is it right that someone can have a criminal record but cannot access it?
Subsection (2) introduces a minimum age of 18 for people countersigning a CRB application on behalf of an organisation. Why did the Minister decide on 18 for that part of the process?

Lynne Featherstone: I have been in many debates in the House about age—voting age, age of criminal responsibility and so on. The age of 16 was proposed by Sunita Mason, the independent adviser, in her report, “A Common Sense Approach.” She recommended,
“that children under 16 should not be eligible for criminal records checks”,
and we fully endorse that sentiment.
There is an interesting breakdown of the number of applications made by people aged 15 and under between January and December 2010. The total number of applicants was 7,801, the vast majority of whom—5,436—were aged between 15 and 15 years 11 months, with only 13 applicants aged 10 to 11 years.

Vernon Coaker: The Minister is making a point that I was going to make about the numbers of people under the age of 16 who were subject to a CRB check. What assessment has she made of the crimes, some of which will have been serious offences, that those people committed to get a criminal record? Although we all agree that having a minimum age is, to be fair, a step forward, there is the issue of what those people were convicted of.

Lynne Featherstone: I will try to get that information. The overriding, key point is that anyone under the age of 16 should be closely supervised because they are not of the age of responsibility for looking after children or vulnerable adults. They are too young to be left in that position, which is why, I presume, Sunita Mason alighted on the age of 16. The Scout Association and the National Society for the Prevention of Cruelty to Children support her recommendation, seeing 16 as an age under which young people should not be left alone in such circumstances.
Under the previous regime, if under-16s had cleared CRB checks, there might have been a temptation on the part of the organisation—particularly in sport, as the hon. Gentleman said—to believe that it was okay to leave them. That would have been a risk, because 2.47% of the 7,801 checks on people under 16 showed some criminal information. The point is that no child should be left alone to look after another child or a vulnerable adult in such circumstances.
Clearly, different situations arise, for example fostering, adoption and same-house peer exemptions, but there should not be a situation whereby someone under 16 works unsupervised with children or vulnerable adults. It was asked whether individuals can access their criminal record by way, for example, of a subject access request. A 12-year-old could have a conviction record and be unable to get a CRB certificate.
On the positions that under-16s hold, 2,500 applications in the January to December 2010 sample were for voluntary posts, and 904 were for sports-related positions, including football coaches, referees, cricket scorers, poolside attendants and gymnastics coaches. Another 1,180 were for educational positions that included the words “student” or “placement”, 157 were in relation to fostering and adoption, and 1,219 were work-related and included the words “placement”, “experience”, “care”, “nursery teacher” and “children’s”. Only 2.47% of the checks revealed any conviction or other relevant information. I think that that answers all the points that have been raised—or have I omitted one?

Diana Johnson: On the 18-year-old.

Lynne Featherstone: The hon. Lady will have to remind me.

Diana Johnson: It was about introducing a minimum age for people countersigning CRB applications. I wondered why the Minister had decided on 18 and not 16, if she believes that 16 is the appropriate age for having a CRB check.

Lynne Featherstone: Witnessing a signature or countersigning is a different legal procedure from being left alone while looking after children or vulnerable adults. That is the reason for that.
Registered persons have to be 18 or over, as the hon. Lady rightly said. They have to ensure that an application form submitted in relation to an individual is completed correctly, and to establish that individual’s true identity by examining a range of documents and using the guidance provided. They are also required to make a statutory statement certifying that the application is required for the purpose of asking an exempted question under the Rehabilitation of Offenders Act 1974 and for a purpose that has been prescribed in regulations under the Police Act 1997.
Sanctions can be applied if registered persons fail to comply with conditions attached to the registration, and there are criminal offences relating to the falsification and improper use of CRB-check information. Introducing the minimum age at which someone may become a registered person reflects the important and sensitive nature of the duties that that role entails. With that, I ask the Committee to agree to the clause.

Vernon Coaker: I thank the Minister for saying that she will let us have more information about offences committed by under-16s who were subject to a CRB check before the introduction of the minimum age, particularly as most of them were 15. I note what the Minister said about the fact that people should not be left in an unsupervised position and so on, but it would be helpful for the Committee to know more about the offences that led to those young people having a criminal record.

Question put and agreed to.

Clause 78 accordingly ordered to stand part of the Bill.

Clause 79

Lynne Featherstone: I beg to move amendment 188, in clause79,page64,line22,leave out ‘117(2)’ and insert ‘117(1)’.

Gary Streeter: With this it will be convenient to discuss Government amendment 189.

Lynne Featherstone: The amendments make further provision about the review process in cases where an individual seeks to dispute the inclusion of additional local police information on an enhanced criminal records certificate. As introduced, the Bill will already strengthen the existing arrangements by allowing for any dispute to be considered by any chief officer, rather than by the chief officer of the force that provided the information in the first place.
On reflection, we think there is a need to go further. Accordingly, amendment 189 will provide for any dispute application about the accuracy of police information on an enhanced criminal record disclosure to be referred to the independent monitor appointed under section 119B of the Police Act 1997. That is important because it will ensure that there is a fully independent element to the disputes process whereby the inclusion of local police information is challenged. In addition, the amendment will provide for persons other than the applicant to challenge the accuracy of information in a criminal records certificate. That merely recognises what sometimes already happens in practice—for example, where the employer or another registered body with an interest in the application disputes police information.
Amendment 188 is consequential on amendment 189. I hope that the Committee agrees that the amendments will significantly enhance the independence and fairness of the disputes process.

Diana Johnson: I understand from the letter that the Under-Secretary produced for the Committee setting out the background to Government amendments 188 and 189 that an individual who had received a CRB check and was not satisfied with the information on it could request a review from the police force that provided the check. I want to be clear about this; does the Minister expect that to be the first step, so if the person still was not satisfied with the review, they could go to a different police force to review the application and the information provided? After that, does the applicant have a further right of appeal to the independent monitor? I am trying to understand. A three-stage appeal process seems to have been developed.

Lynne Featherstone: I think we are talking about different things. A mistake about an address or an identity on a certificate is different from the enhanced local policing intelligence being wrong.

Diana Johnson: I thank the Minister for that. As I understand it, an applicant for a CRB check can apply to the Secretary of State for information to be reviewed if they believe that it is inaccurate. They also have a right to go back to the police force about information that they think is irrelevant and should not be on the record, and a further right to go to another police force to ask it to review the record. At the end of that, do they also have the right to go to the independent monitor? I am trying to understand how we have ended up here. It is absolutely right that a criminal records check can be challenged where information is inaccurate, incorrect or irrelevant, but the process seems a little unwieldy. I do not understand why we need all the different tiers of reviews and appeals processes.
Will the Minister explain clearly what the procedure and the role of different polices forces will be? She discussed the opportunity to go to any chief officer of any force—I might be wrong about that, so I would appreciate it if she explained the process. I am interested in the time scale. If there is a tiered approach to appeals, what is the time scale for dealing with them?
What is the role of the Independent Safeguarding Authority? It will hold information, so are we not simply replicating its work looking at information and deciding whether it is relevant? Is the appeal to the independent monitor a discretion or a right that everybody will have? What is the process likely to be? Will it be an oral hearing or will it be done through paperwork? How will it work?
We could end up with delays and stalling by people who want to use the system for their own benefit to get into positions where we do not want them to be. They could spend a long time pursuing appeals and reviews without any chance of success, just to have the opportunity to access a voluntary sector position or an organisation that they want to use to get close to vulnerable adults or children. I would be grateful if the Minister went through the process and the timing involved, and told us whether there will be additional costs. The impact assessment does not mention additional finance that will need to be made available for the process, so has any thought been given to what the likely cost will be?

Lynne Featherstone: I am sorry if my remarks on the dispute process were not clear. A factual dispute would go to the police force, but it would be a different force from the first police force, so that is what is meant by any chief police officer. It is about not having to go back to the force that may have chosen to include the information on the certificate in the first place, so the proposals are strengthened by stating “any…chief officer”.
A relevance dispute would go, at the discretion of the applicant, to the independent monitor, but perhaps it would help if I laid out the process—it relates to the other part about the ISA, too—because the disputes procedure in part 5 of the Police Act is quite separate from the role of the ISA in making barring decisions. How would someone be able to dispute information released by a chief officer in future? If someone believes that the information released by the CRB-enhanced certificate is irrelevant or ought not to be included, they would now have the power to apply to the independent monitor, as established under part 5 of the Police Act, for that to be reviewed. On receiving such a request, the independent monitor must ask a chief police officer to review the matter and advise accordingly. If, in the light of that advice, the independent monitor reaches the judgment that the disputed information was irrelevant or should not be included, the independent monitor must inform the Secretary of State who, in turn, must require the CRB to issue a new certificate. I hope that that helps.

Diana Johnson: The independent monitor sends a request to a chief officer—is that a chief officer of the same force, or a different force?

Lynne Featherstone: It is a chief officer of a force different from the force that put the irrelevant or wrong information on the certificate in the first place.
The hon. Lady also asked about the time scale; I agree with her in the sense that there is a process to be gone through. It will depend on how many processes are involved, or whether more than one police force has information. That will take time, but it will be as fast as it can be. That goes back to the point that it is better for someone to be able to dispute information which is written about them on the CRB than not to do so. Although a time factor will be involved, that should not sway us from the course of doing what is fair and just for an individual who has incorrect information on their CRB certificate. I think that my response has answered the hon. Lady’s questions.

Amendment 188 agreed to.

Amendment made: 189, in clause79,page64,leave out lines 23 to 31 and insert—
‘(1A) Where any person other than the applicant believes that the information contained in a certificate under any of sections 112 to 116 is inaccurate, that person may make an application to the Secretary of State for a decision as to whether or not the information is inaccurate.”
(5) After section 117 of that Act insert—
“117A Other disputes about section 113B(4) information
(1) Subsection (2) applies if a person believes that information provided in accordance with section 113B(4) and included in a certificate under section 113B or 116 —
(a) is not relevant for the purpose described in the statement under section 113B(2) or (as the case may be) 116(2), or
(b) ought not to be included in the certificate.
(2) The person may apply to the independent monitor appointed under section 119B for a decision as to whether the information is information which falls within subsection (1)(a) or (b) above.
(3) The independent monitor, on receiving such an application, must ask such chief officer of a police force as the independent monitor considers appropriate to review whether the information concerned is information which—
(a) the chief officer reasonably believes to be relevant for the purpose described in the statement under section 113B(2) or (as the case may be) 116(2), and
(b) in the chief officer’s opinion, ought to be included in the certificate.
(4) In exercising functions under subsection (3), the chief officer concerned must have regard to any guidance for the time being published under section 113B(4A).
(5) If, following a review under subsection (3), the independent monitor considers that any of the information concerned is information which falls within subsection (1)(a) or (b)—
(a) the independent monitor must inform the Secretary of State of that fact, and
(b) on being so informed, the Secretary of State must issue a new certificate.
(6) In issuing such a certificate, the Secretary of State must proceed as if the information which falls within subsection (1)(a) or (b) had not been provided under section 113B(4).
(7) In deciding for the purposes of this section whether information is information which falls within subsection (1)(a) or (b), the independent monitor must have regard to any guidance for the time being published under section 113B(4A).
(8) Subsections (10) and (11) of section 113B apply for the purposes of this section as they apply for the purposes of that section.”’.—(Lynne Featherstone.)

Diana Johnson: I beg to move amendment 207, in clause79,page64,line31,at end insert—
‘(5) In subsection (3) of section 113B of the Police Act 1997 (an enhanced criminal record certificate is a certificate which), after (b), insert—
“(c) states whether the applicant is on a barred list maintained by the ISA in relation to work with vulnerable adults or children (whichever is appropriate).”.’.
The amendment changes the definition of an enhanced CRB check in the Police Act, so that an enhanced CRB check will now declare whether someone is on an ISA barred list. As the ISA undertakes a very thorough investigation before barring anyone, and it receives and seeks information which may not be on the police database, and because the individual has the right to appeal to the ISA to correct any mistakes, we believe that it is important to accept the amendment.
A large amount of soft intelligence is not passed to the police, as we have discussed, and in the cases of vulnerable adults, the might be as high as 50%. Where large amounts of information have been received and assessed, and suggest that an individual poses a threat so severe that the ISA has decided to bar them, that person poses a threat when working with children or vulnerable adults, even if it is not in a regulated activity. An example might be a teacher, who has been struck off through consistent, soft information from a number of schools and local education authorities. Although none of that information has been reported to the police, that person might then become a volunteer teaching assistant, helping with reading and sport in a school. That institution would not know about that person’s barred status. The amendment is in line with the arguments that we have made throughout. It will ensure that the information flow on barred status goes to everybody who needs to know about it.

Lynne Featherstone: We have debated the point fairly fully, and I do not want to repeat everything that we have said, but I reiterate that our key changes are to the scope and the extent of regulated activity, not to the application of barred persons. The concept that a barred person may still be able to undertake some activities with children or vulnerable adults is not new. The scope of regulated activity has never covered all possible contact with those groups. The previous Government, for example, accepted that the test of frequency and intensiveness should apply to regulated activity and agreed to relax the rules on the definitions following Sir Roger Singleton’s review.

Diana Johnson: This is such an important issue that I would like to test the Committee by pressing the amendment to a Division.

Question put, That the amendment be made.

The Committee divided: Ayes 5, Noes 10.

Question accordingly negatived.

Question proposed, That the clause, as amended, stand part of the Bill.

Diana Johnson: The clause amends the test that police officers must employ when deciding to release information on an enhanced CRB check. At present, officers must include any information that they think “might be relevant”. In future information will be released only if the officer “reasonably believes” that it will be relevant.
A new subsection is inserted into the Police Act 1997 allowing the Secretary of State to issue guidance to police officers about how they should exercise their responsibilities under section 113B(4), which addresses the discharge of non-conviction information on an enhanced CRB check. The clause makes changes in line with the creation of the police national database. The Secretary of State previously had to approach the chief officers of all forces that might hold relevant information, charging them with making the disclosure. The Secretary of State will now need to charge only one “relevant chief officer” with making the disclosure. That officer will make the decision based on all the information on the database.
I want the Minister to address a number of issues. First, why did she feel it is appropriate to change the test for releasing information? What is the evidential basis for that change? Secondly, how is a police officer meant to judge what is relevant? What conversations have there been with ACPO on the advice and guidance that will be issued? If all the police officer knows is that the person has requested an enhanced CRB check, he could, one would assume, foresee what might be relevant, but on what basis is he meant to have a reasonable belief on what will be relevant? That is a difficult challenge for a police officer to undertake. What steps will the Minister take to standardise the information release across different forces? Evidence has been provided of inconsistencies in the information release across the country. What is her view on how that might help to standardise that information release?
How much of a problem will there be of different police forces not being able to access the background intelligence behind an entry on the database? What thought has the Minister given to the views of ACPO about what full information not on the database might be available to a local force that might allow a chief police officer to make an informed and considered decision? That concerns me. What is her view?
I refer to the evidence from the Public and Commercial Services Union, which represents many employees who work in the criminal records checking regime in England and Wales. PCS says that clause 79(2)
“seeks to place a limit on the amount of time that police forces have to respond to requests for non-conviction information on applicants…Whilst we recognise that delays can lead to inconvenience and hardship for applicants, we believe that this will bring little benefit to employers or applicants as it will lead to incomplete checks being issued and creates the potential for recruitment decisions being made by employers before all relevant information is known. It could also lead to the possibility that police will release more information than necessary through ‘common law’ powers,”
which we discussed earlier,
“as they will be eager to remove any liability or risks that this deadline will create. This will only lead to less transparency and consistency for applicants.”
That is all I want to say on clause 79.

Lynne Featherstone: Clause 79 makes a number of changes relating to the role undertaken by the police service in support of the CRB’s processes and aims to improve the system by introducing additional safeguards to the disclosure process for enhanced criminal record certificates. As elsewhere in this part of the Bill, the changes made implement recommendations from the recent review of the CRB process by Mrs Sunita Mason.
As the hon. Lady said, the clause makes four substantive changes. First, it allows the Secretary of State to approach any relevant chief police officer to determine whether additional information should be included in an enhanced CRB check. Secondly, it changes the wording of the relevance test to “reasonably believes”. Thirdly, it introduces a provision requiring chief police officers, when making such a determination, to have regard to guidance published by the Secretary of State. Finally, the clause allows the applicant the right to request a review of information released by a chief police officer on an enhanced criminal record certificate.
Explaining the changes a little more deeply will answer some of the hon. Lady’s questions. Currently, the Secretary of State must ask the chief officer of every relevant police force to provide information. Regulations define a relevant police force as any police force holding information about the applicant. Often, two or more police forces can hold information, making them all relevant forces.
At the moment, work is well advanced to provide the police with centralised, IT-enabled access to all local police intelligence via the new national police database. All forces in the UK are in the process of connecting to it, and should begin using the first phase of the system this year. It will create scope to use resources much more effectively and efficiently by moving towards a centralised decision-making process. For example, a few lead forces might be responsible for taking disclosure decisions, perhaps on a regional basis. They would be more expert as a result of having more occasion to make such decisions. It is sometimes alleged, as the hon. Lady said, that the disclosure service is a postcode lottery, depending on the police force, how good it was at it and what a particular chief officer determined as relevant. By centralising the decision-making process, there will be a more consistent approach to determining what non-conviction information should properly be disclosed. I am sure that that will be helpful for what goes on the certificate and for the police making the decisions. It is fair to say that the “reasonable belief” test is something with which the police are very familiar.
The second change concerns the relevance test—the change from “might be relevant” in considering the applicant’s suitability for the position and, if so, whether that information ought to be included on the certificate. We believe that this requires the disclosure of an unhelpfully wide set of information, much of which is extremely unlikely to be relevant to employment decisions but which places both employers and individuals in a difficult predicament when determining the appropriate action to be taken in view of the information released.
Clause 79 introduces a slightly higher test for the inclusion of information, which, as we discussed, is information that the chief officer “reasonably believes to be relevant” and which, in the chief officer's opinion, ought to be included in the certificate. The “reasonably believes” test is commonly used by the police on a wider basis and will be readily understood.

Diana Johnson: Can the Minister give an example of where information might have been relevant under the old system, but under the new clause the officer would be required to have reasonable belief in order to provide that information? Can she explain that?

Lynne Featherstone: I know it is in Sunita Mason’s report. I am sure it will come to hand shortly. I think she uses an example about excessive standing at a football match.
The third change relates to the provision of guidance.[Interruption.] The relevance test has just come into my possession. An individual has applied for a post working with adults who have learning disabilities and requires an enhanced criminal record check. The police have information suggesting that he was connected with an act of vandalism at the age of 15, but no charges were ever brought. In this case, it could be that the information in relation to vandalism might be relevant to the post applied for and, as such, disclosed on the criminal records certificate. However, if there was a higher threshold, it is unlikely that a chief officer would reasonably believe that such information would be relevant for disclosure. That is the sort of territory that we are in.
On the third change, there are no provisions for the Secretary of State to issue guidance to police forces on the discharge of their functions under the Police Act. While the CRB and ACPO have developed and rolled out to all forces a quality assurance framework to document search criteria to be used in local system searches, this does not detail the Secretary of State’s expectations as to how decisions under the Act should be made. The clause will enable the Secretary of State to issue guidance to relevant chief officers about the discharge of their functions in relation to the disclosure of non-conviction information on enhanced criminal record certificates and places a requirement on a relevant chief officer to have regard to any such guidance. We believe that this guidance is necessary to ensure the consistency that the hon. Lady spoke of in a process that must be fair, transparent and proportionate.
Fourthly and finally, the clause provides a change to allow the applicant the right to request an independent review of the information released. At present, a dispute by an applicant about the release of information by a chief officer is handled by the chief officer who made the original decision whether or not to release the information. In most cases, when such a dispute is made, the chief officer will dismiss the dispute or might only make subtle changes to the text rather than remove the information altogether. There is currently no further opportunity to challenge the chief officer’s decision to dismiss a dispute and, in practical terms, the next stage of the dispute would be by way of judicial review proceedings, which are both costly and time consuming for all parties.
The clause covers an applicant’s capacity to request a review of information supplied by a chief officer on an enhanced criminal record certificate. Following the amendments that we have just discussed, we are introducing an independent review mechanism whereby people can apply to an independent monitor if they believe that any of the police information is not relevant and ought not to be included on the certificate.
The matter of additional police information is complicated. It can be further information that relates to a caution or conviction that is on the disclosure or it could be information retained by the police following an investigation that did not proceed to a criminal charge or conviction for various reasons. Either form of information might be relevant to disclose to a potential employer. Although local intelligence can be vital in making decisions about someone’s employability, the way in which that information is disclosed must be fair and proportionate.
The general view of the police forces is that they can find the disclosure service burdensome despite the support from the CRB. Police forces, as well as ACPO, have said that changes to make the process more effective and straightforward will be much welcomed.

Question put and agreed to.

Clause 79, as amended, accordingly ordered to stand part of the Bill.

Clause 80

Question proposed, That the clause stand part of the Bill.

Diana Johnson: The clause introduces portable and updatable CRB checks. Previously, one of the criticisms of the CRB system was that it only represented a snapshot in time. Now, an employer will be able to register to receive online updates and new employers will be able to register to make sure that a CRB check is still relevant and up to date. However, the automatic updating has to be subscribed to, at a fee, and I wish to question the Minister on whether any thought has been given to the level of that fee. The individual must give consent for that to happen. Moreover, no new information will be sent via the online system. It would merely tell the employer that to apply for a new certificate was the right thing to do.
Does the hon. Lady believe that the fees for the updating system will be a problem for small groups, such as Sunday league clubs or people who are volunteering their time and energy? Will she comment on that problem because it is of genuine concern? The Government say that money will be saved by preventing repeat applications for CRB checks. However, several groups that gave evidence said that they do not believe that automatic updating will cost them less because they have to subscribe for the updates. They would still have to meet that ongoing cost.
What happens if a CRB check is requested and paid for, but the subscription fee is not paid? What protection is available to make sure that people are checked properly? Will there be fee relief for voluntary groups and charities? The Government indicated that no fee will be chargeable to volunteers for CRB checks. Perhaps the hon. Lady can correct me if I am wrong, but will that apply to the fees that are levied on the updating system? Who does the Minister expect to pay? Will it be the individual, the voluntary group, the employer or the charity?
Girlguiding UK says that it
“strongly supports a procedure to enable continuous updating of checks. However, we would like to see confirmation that these would remain free of charge for the voluntary sector.”

Lynne Featherstone: I think overall there is a resounding welcome for the portability of checks. One of the things that has come through everyone’s post bag—certainly mine—is endless complaints about the number of CRB checks that an individual has to have, particularly if they are working for different agencies. It is endless. I have to say that the remedy is ingenious. In case hon. Members are not familiar with it, the idea is that any individual who has a CRB check or an enhanced CRB check will be issued with a unique number. Whenever they go to a new employer, they would normally be asked to get a new CRB check, because CRB checks are snapshots in time. Under this provision, they can give the employer the unique number, and the employer can then turn to their computer and go online. The hon. Lady is right that the system will not indicate new information in detail, but it will either say that there is no change, in which case there is no need to get a new CRB check, or it will indicate that there is a need to get a new check done, in which case the person would have to do that.
The system updates what has been an extremely expensive bugbear for many people. Each time they have to get a new check, they have to pay a new fee. I commend those who designed the new scheme. It is an exceptional way forward for the problem. On how much it will cost, the costs will be finalised when new arrangements are introduced. We are clear that the cost of an annual fee to enable online checking will be far less than the cost of criminal record checks.
As now, volunteers will not be required to pay for criminal record checks. At present, it is envisaged that if a volunteer wants to subscribe to the voluntary updating service, they will have to pay a subscription fee. That is still, however, under consideration, because we understand the position of voluntary organisations who say that a fee may be off-putting to volunteers.
I was asked how much it will cost an employer who wants to obtain a new enhanced criminal record check on someone wishing to work in regulated activity. From 6 April 2011, the cost of obtaining an enhanced criminal record check rose by £8 to £44. That rise was to fund the changes to the current system, without placing an additional burden on the general taxpayer. The fee increase is designed to deliver an equitable way of funding necessary expenditure, without the income that would have been raised from the previously proposed £64 fee for scheme registration. It is cheaper than it was, but it has increased, if hon. Members see what I mean. The £22 million generated through the fee increase over 2011-12 includes the operational costs of the ISA at £14.3 million, IT infrastructure and a contribution towards the development of the overarching criminal records regime. As to who pays the fee, that is a matter for the individual and employer.

Question put and agreed to.

Clause 80 accordingly ordered to stand part of the Bill.

Clause 81

Diana Johnson: Currently, a CRB check discloses all unspent criminal convictions. Clause 81 would amend that, so that a CRB check will also disclose conditional cautions. What kinds of offences will that cover? What is the rationale for doing that? Given that conditional cautions tend to be for minor offences, will this not deter people from volunteering to work with children where the conditional cautions would not be relevant? Girlguiding UK has raised the particular concern that volunteers will not come forward because of the disclosure.

Lynne Featherstone: I do not understand where the hon. Lady is coming from. Clause 81 amends the provisions of the Police Act 1997 that govern the information included on a basic certificate, also known as a criminal conviction certificate. Currently, the 1997 Act provides that a basic certificate must detail any convictions that are unspent under the terms of the Rehabilitation of Offenders Act 1974. The clause provides that such certificates must also include details of any unspent conditional cautions. Basic certificates are not currently issued by the Criminal Records Bureau, but their introduction is being examined.
If a conviction or, in this case, a conditional caution becomes spent it means that an individual, if asked, does not have to respond to a question about whether they have ever received a conviction or conditional caution. A conditional caution will become spent after three months. Exceptions to that protection are listed in the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975. They include positions, offices and activities where, due to the sensitivity of the post or potential for risk of harm to vulnerable groups, it is considered that being able to ask an individual a question about all convictions is justified.
The hon. Lady asked about the type of offences. Conditional cautions could be given for minor assaults, public order offences, thefts and so on. As I have said, they are spent after three months, so they would not be disclosed after that.
For the majority of positions listed in the 1975 order, the process of asking the question on all convictions held is through an application to the CRB for a standard or enhanced criminal record certificate. A conditional caution is an out of court disposal where an offender avoids being prosecuted for an offence by admitting his or her guilt and agreeing to comply with certain conditions. Clause 81 is, in effect, a consequential amendment as a result of previous changes to the Rehabilitation of Offenders Act 1974, which brought the scope of conditional cautions under the protections of that Act, and so needs to be included herewith.

Question put and agreed to.

Clause 81 accordingly ordered to stand part of the Bill.

Ordered, That further consideration be now adjourned. —(Jeremy Wright.)

Adjourned till Thursday 12 May at Nine o’clock.